Arizona Gets its Day in Court

Article 4 Section 4 of the Constitution (the Guarantee Clause) directs the federal government to guarantee the states protection from invasion. Yet, in the case of Arizona, which has been disproportionately effected by the invasion of illegal aliens and drug cartels, the Obama administration has guaranteed them nothing but lawsuits.

In April 2010, Arizona Governor Jan Brewer signed SB 1070, a bill designed to curb illegal immigration, into law. Among other things, this law (section 2) requires police officers who were already apprehending suspects for other crimes to check with federal authorities whether that individual is in the country legally. That inquiry can be made only if there is a reasonable suspicion that the suspect is an illegal alien.

Instead of working in concert with Arizona to protect its citizens from border-related violence, as prescribed by numerous laws of Congress, the Obama administration filed a lawsuit against Arizona in federal court. Most egregiously, that lawsuit was first announced by Hillary Clinton while she was overseas. The administration basically argued that states are preempted from enforcing immigration laws, and because the Obama administration has decided not to enforce those laws, Arizona was supplanting federal authority. The Obama Justice Department has also filed lawsuits against several other states that have passed similar legislation last year.

On July 28, 2010, federal district judge Susan Bolton issued a preliminary injunction on most of the key components of the law. That injunction was upheld by the Ninth Circus court last April. Despite the fact that most of the law has been enjoined for almost two years, the illegal population in Arizona has dropped precipitously. The law has served as a paradigm for ‘attrition even before enforcement,’ let alone through enforcement.

On Wednesday, Arizona will finally get its day in the Supreme Court, as the highest court in the land hears oral arguments in Arizona v. United States.

Obama’s lawsuit against a state beleaguered by the illegal invasion represents one of the most perverse actions ever taken by the federal government. This lawsuit should be summarily dismissed by the Supreme Court. The administration contends that Arizona is preempted from enforcing SB 1070 because the federal government reserves plenary power in immigration enforcement. It is true that the federal government has plenary power over this issue. But which branch of the federal government holds that power? It is Congress that sets immigration power. And over the years, Congress has passed numerous laws, from Secure Communities to 287(g) provisions that blatantly deputize state and local law enforcement to work harmoniously with the feds in enforcing immigration laws. So in reality, the Obama administration is preempted by Congress.

While the Obamacare case will clearly be the most important decision to come down from the Supreme Court later this year, Arizona v. United States will be a close second. Just like in the Obamacare case, the constitutional side will be represented by the inimitable Paul Clement. And unlike with Obamacare, the public strongly favors upholding the immigration law. We also have a leg up on the administration with Elena Kagen recusing herself from the case. This decision will clarify basic issues of states’ rights and the rule of law – concepts that are an anathema to this Alinskyite in the White House.